EFFector Vol. 14, No. 30 Oct. 10, 2001 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 14, No. 30 Oct. 10, 2001 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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Though legislators are finally becoming aware of civil liberties concerns surrounding the draft Anti-Terrorism Act and related legislation, and some not-as-bad versions of the legislation exist, the Administration is pushing very hard to have their preferred version voted on pre-emptively by both the House and the Senate within the next few days. The Senate is expected to hold a vote tomorrow afternoon, with only four or fewer amendments being permitted. Sen. Feingold is expected to offer some amendments, but they will not address all of the concerns with this legislation.
Please call them, and also fax and e-mail your message. Keep it short, and ask
them to vote AGAINST this legislation at this time, unless and until extensive
hearings are conducted, because the bills pose unprecendented threats to American
privacy, to basic justice, and to equal treatment under the law. Use their
Washington fax and e-mail contact info, which you can get from Project Vote Smart:
or the House:
and Senate:
websites. You can also look up your Representative with this form:
Non-US readers can probably have little impact on the US Congress's votes on these matters, and could even affect them negatively. Your best course of action is to contact your own legislators/parliamentarians and urge them to avoid similar policies in your own country.
This drive to contact your legislators about unprecedented wiretap power expansion is part of a larger campaign to highlight how extensively companies and governmental agencies subject us to surveillance and share and use personal information online & offline, and what you can do about it.
Check the EFF Privacy Now! Campaign website regularly for additional
alerts and news:
EFF again urges Congress to act with deliberation and approve only measures that are effective in preventing terrorism while protecting the freedoms of Americans.
"The theme of freedom in the face of terrorist attacks should include a focus on measures that preserve rather than diminish our civil liberties," said EFF Exec. Dir. Shari Steele.
The DOJ's own analysis of another particularly egregious provision of the ATA points out that "United States prosecutors may use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment."
"Operating from abroad, foreign governments could do the dirty work of spying on the communications of Americans worldwide. US protections against unreasonable search and seizure won't matter," commented EFF Senior Staff Attorney Lee Tien.
Additional provisions of the proposed Anti-Terrorism Act include the following measures:
The scope of the Computer Fraud and Abuse Act's Sect. 1030(a)(5)(A) is especially broad, dangerously so even before the ATA would attempt to redefine violations of this section as "terrorism". It criminalizes the following:
(5)(A) [one who] knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer [is in violation of the statute];
Several civil cases have construed this language. For example, in Shaw v. Toshiba America Information Systems, Inc., 91 F.Supp.2d 926 (E.D.Tex.,1999.), defendant knowingly distributed laptop computers containing disk drives with faulty microcode that allowed unwanted corruption/deletion of data. The court squarely held that manufacturers of computer equipment could be reached by Sect. 1030(a)(5)(A) -- "transmission" includes the design, manufacture, creation, distribution, sale, and marketing of floppy-disk controllers allegedly made faulty by defective microcode.
One court has found that placing a cookie on a user's computer to monitor websurfing habits could violate Sect. 1030(a)(5)(A). In re Intuit Privacy Litigation, 138 F.Supp. 2d 1272 (C.D.Cal. 2001). Defendant operated a website that used cookies to track its users, and were sued for privacy violations on several theories, including Sect. 1030. On motion to dismiss, the court found that this conduct fell within Sect. 1030(a)(5)(A). (Because the class-action plaintiffs had not alleged economic damages, the motion to dismiss was granted, but without prejudice, to allow the plaintiffs to make the proper allegations.)
It is clear that any number of activities not initially on the minds of legislators when they passed Sect. 1030(a)(5)(a) could eventually be held to fall under this statute anyway. No one can predict at this early stage what will or will not be considered a violation of this provision. Yet the ATA would redefine all present and future violations as acts of terrorism, with violators subject to terrible penalities, up to and including life in prison without possibility of parole.
Additionally, these changes to the law would remove statutes of limitations and become retroactive. This means that any US-based computer security professional who, like many in this field, once upon a time began as a system cracker or other "black hat" hacker, potentially faces criminal prosecution under the ATA.
If the Department of Justice needs extra laws relating to supposed "cyberterrorism", it can seek narrowly-tailored legislation. Simply importing virtually all computer crime into the definition of terrorism is far too broad and heavy-handed.
Senator Patrick Leahy has attempted to moderate the ATA through introduction of the "Uniting and Strengthening of America Act" (USAA). While EFF believes USAA would unnecessarily increase law enforcement surveillance powers, it is nowhere near as harmful to civil liberties as the Bush administration's proposal.
For example, the USAA does not increase penalties for low-level computer intrusion. The USAA would retain existing restrictions on wiretaps, including requiring court orders to obtain voicemail messages. However, both the ATA and the USAA would expand FISA to include roving wiretaps. The USAA would also permit disclosure of Title III wiretaps to intelligence officers, whereas the ATA would permit disclosure to any federal employee. The USAA also would require a court order for grand juries to provide information to the US intelligence community, unlike ATA. Provisions of the ATA permitting the President to designate targets for FISA surveillance, preventing people from providing "expert advice" to terrorists, and collecting foreign intelligence on American citizens are not included in the USAA.
EFF's Steele emphasized, "While it is obviously of vital national importance to respond effectively to terrorism, these bills recall the McCarthy era in the power they would give the government to scrutinize the private lives of American citizens."
The ATA and USAA bills come in the wake of the Senate's hasty passage of the "Combating Terrorism Act" (CTA, amendment S.A. 1562 to House-passed bill H.R. 2500) on the evening of September 13 with less than 30 minutes of consideration on the Senate floor.
Another similar bill, called the Public Safety and Cyber Security Enhancement Act (PSCSEA), has been drafted for introduction in the House, and appears to be a "backup plan" for S.A. 1562; if it does not pass as part of H.R. 2500, it can be reintroduced separately in slightly different form as a new bill. Sen. Graham's new Intelligence to Prevent Terrorism Act (IPTA, S. 1448) raises related issues. Sen. Judd Gregg is drafting anti-encryption legislation, as well.
For bill texts and analyses, see the EFF Surveillance Archive:
http://www.eff.org/Privacy/Surveillance/
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to Web sites in the world:
http://www.eff.org
Lee Tien, EFF Senior First Amendment Attorney
tien@eff.org
+1 415-436-9333 x102
Will Doherty, EFF Online Activist / Media Relations
wild@eff.org
+1 415-436-9333 x111
- end -
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